Stephenson and Stephenson and Ors

[2009] FamCA 1102

FAMILY COURT OF AUSTRALIA

STEPHENSON & STEPHENSON AND ORS [2009] FamCA 1102

FAMILY LAW – PROPERTY – Trust property – Interests of adult children – s 85A Family Law Act – Approving terms of agreement

APPLICANT: Mr Stephenson

1^st RESPONDENT: Mrs Stephenson

2^nd RESPONDENTS:

Mr A Stephenson

Ms B Stephenson

3^RD RESPONDENT: Mr C Stephenson

FILE NUMBER: BRF 2532 of 2006

DATE DELIVERED: 21 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 21 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T Kirk SC

SOLICITOR FOR THE APPLICANT: Thynne & Macartney, Brisbane, Qld

COUNSEL FOR THE 1^ST RESPONDENT: Mr T North SC

SOLICITOR FOR THE 1^ST RESPONDENT: Murdoch Lawyers, Brisbane, Qld

SOLICITOR FOR THE 2^ND RESPONDENTS Mr P Sheehy, Brisbane, Qld

SOLICITOR FOR THE 3^RD RESPONDENT

Mr P Sheehy, Brisbane,

Qld

Orders

IT IS ORDERED BY CONSENT

1. That orders be made in accordance with the Minutes of proposed orders sealed and attached hereto.

IT IS DIRECTED

1. That the said Minutes remain upon the Court file.

1. That the application be removed from the pending cases list.

MINUTES OF ORDERS SOUGHT BY CONSENT

1. That Mr C Stephenson be joined as Third Respondent in these proceedings.

1. That as and by way of property settlement, the Husband and the Wife receive and/or retain the property and resources set forth in the following Orders.

1. G Land/The W Stephenson Family Trust

That pursuant to Section 85A of the Family Law Act, it is ordered:

3.1That the Husband and the Wife transfer all that land described as Lot 12 on … in the County of … Parish of … (“the G land”) to the Wife and upon transfer she shall hold the legal and beneficial interest therein;

3.2That the Husband assign to the Wife any right to compensation for resumption of any part of the G land and sign such documents as shall be reasonably required in that regard;

3.3That the Husband resign as a trustee of the W Stephenson Family Trust (“the Trust”) forthwith and sign such documents as shall be reasonably required by the Wife in that regard;

3.4That Mr C Stephenson, Mr A Stephenson and Ms B Stephenson each waive any right or entitlement to any amount standing to his or her credit in the accounts of the Trust;

3.5That the Husband and the Wife each waive any entitlement or right to any balance now shown as being owed to them, either of them or to the partnership referred to in Order 4.2 in the accounts of the Trust.

1. Property to be received and/or retained by the Husband

4.1That except as these Orders provide to the contrary, the Husband retain as his property to the exclusion of the Wife:

(a)money standing to the credit of the Husband in any bank account in his sole name;

(b)all furniture, furnishings and other chattels in his possession;

(c)the life assurance policies owned by the Husband with AXA and MLC;

(d)the real property called “W” situate at W, …, in the State of Queensland;

(e)the plant and equipment referred to in the T Valuation of 21 February 2007;

4.2That the Wife transfer to the Husband or at his direction all of her right, title and interest in the partnership known as W Grazing Company (“the Partnership”) and the assets thereof, such transfer to take effect as of 30 June 2009;

4.3The Husband and Wife do all things and sign all documents necessary to:

(a)transfer the plant and livestock of the Partnership to the Husband at a value to be agreed and failing agreement at written down book value;

(b)make an election under section 70-100(4) of the Income Tax Assessment Act (“the Act”) to treat the Partnership’s livestock as having been disposed of to the Husband for what would have been its value as trading stock of the Partnership on hand at the end of an income year ending 30 June 2009;

(c)sign a notice of election under section 70-100(4) of the Act in respect of the deemed disposal of the Partnership’s livestock;

(d)make an election under section 40-340(3) of the Act, for roll-over relief in respect of the deemed disposal of the Partnership’s plant and equipment to the Husband pursuant to paragraph (a) above;  and

(e)make an election under section 385-165 of the Act, for the Husband to be treated as a continuation of the Partnership for the purpose of an election made under section 385E.

1. Property to be received and/or retained by the Wife

5.1That except as these Orders provide to the contrary, the Wife retain as her property to the exclusion of the Husband, and if necessary, the Husband transfer all his right, title and interest to the Wife in and to the following:

(a)money standing to the credit of the Wife in any bank account in her sole name;

(b)all furniture, furnishings, jewellery and other chattels in her possession;

(c)all shares in publicly listed companies held in her name;

(d)the motor vehicles currently in her possession, including the Mercedes, Isuzu and Mitsubishi motor vehicles and the Husband sign such documents as may be required to transfer registration thereof to the Wife;

(e)the D and L time shares;

(f)her interest in the real properties situate at E, and at B, both in the State of Queensland;

5.2That the Husband make available to the Wife for her collection at a time agreed to by the parties the following furniture and chattels:

(a)Six tall brown Scottish mugs (if such can be located);

(b)Set of … prints;

(c)Marble top wash stand;

(d)Oval mirror;

(e)G architect’s plans and laminated photograph;

(f)Royal Doulton figurines (as many of the 4 Seasons style he can locate);

(g)Mahogany side table with twin fluted pedestals;

(h)Queen Anne drawers and shoe cupboard.

1. Transfer to the Children

6.1That the Husband and the Wife take such steps as shall be necessary to transfer to B Stephenson (“B”) all their right, title and interest in the property situate at H Street, M and the funds standing in the Suncorp rent account …29, provided however that B assumes total responsibility for the Suncorp debt secured thereon being loan number …97 and refinances the same and the Suncorp debt in respect of the property acquired by B in Y and secured thereon;

6.2That the Husband and the Wife take such steps as shall be necessary to transfer to A Stephenson (“A”) all their right, title and interest in the property situate at R Street, M and funds in the Suncorp rent account …74, provided however that A assumes total responsibility for the Suncorp debt secured thereon being loan number …61 and refinance the same;

6.3Upon the carrying out in 6.1, B refinance in her name the Suncorp loan …53 currently in the names of the Husband and the Wife.

1. Indemnities

7.1The Husband will indemnify the Wife and keep her indemnified in respect of all liabilities, actions, suits and/or demands of any nature whatsoever:

(a)arising out of the Wife’s involvement as a trustee or otherwise of the W Stephenson Family Trust up to the date of these Orders, should any of the children of the marriage, namely C Stephenson, A Stephenson or B Stephenson (“the said children”) bring proceedings (“the said proceedings”) in respect thereof, such indemnify is limited to 60% of any sum, including costs ordered to be paid by the Wife or the Husband and Wife as the case may be;

(b)arising out of the Wife’s involvement as a partner in the Partnership known as W Grazing Company, including any debt or loans owing by the Wife to the Partnership and secures the Wife’s unconditional release from any liability to Suncorp in respect of loan number …69 (“the overdraft account”);

7.2The Wife will indemnify the Husband and keep him indemnified in respect of all liabilities, actions, suits and/or demands of whatsoever nature:

(a)arising out of the Husband’s involvement as a trustee or otherwise of the W Stephenson Family Trust and should any of the said children bring the said proceedings referred to in 7.1(a) in respect of the Husband’s involvement, provided however that such indemnity is limited to 40% of any sum, including costs ordered to be paid by the Husband or the Husband and the Wife as the case may be, it being intended by the application of Orders 7.1(a) and 7.2(a) that any liability in respect of the trusteeship of the Husband and Wife over the period up to the date of these orders and in the carrying out of these orders will be borne by the Husband as to 60% and by the Wife as to 40%;

(b)arising out of any claim made by Mr R in relation to sharefarming activities conducted on the property, W Limited to 50% of any sum, including costs ordered to be paid by the Husband, the Husband and the Wife or the Partnership as the case may be.

1. Miscellaneous Orders

8.1That except as these Orders provide to the contrary:

(1)all documents necessary to transfer any property or give effect to any transaction pursuant to the terms of such transaction of these Orders be prepared by the party receiving such property or the benefit of transaction;

(2)that the party receiving such property or the benefit of such a transaction be responsible for the payment of taxation, stamp duty, registration fees, legal costs and outlays in relation to effecting the transfer of any property or the receipt of any benefit of such a transaction pursuant to the terms of these Orders.

1. The parties comply with all requisitions issued by the Office of State Revenue and the Land Titles Office in relation to any document executed or transaction entered into pursuant to, or to put into effect, by these Orders.  In default of either of the parties complying with any requisition so issued within 14 days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the outstanding requisitions and recover from the other party in default, the costs and outlays incurred in complying with the requisition, such costs to be calculated in accordance with the Family Law Rules.

1. That in the event that any party to these Orders refuses or neglects to comply with any or all of the provisions of these Orders, the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed, pursuant to s.106A of the Family Law Act, to execute all deeds and documents in the name of the Husband and/or the Wife and to do all acts and things necessary to give validity and operation to these Orders.

1. That unless otherwise specified in these Orders and save for the purposes of enforcing any moneys due under these or any subsequent Orders:

11.1Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders;

11.2Insurance policies remain the sole property of the owner named therein;

11.3Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

1. That all applications be otherwise dismissed and the proceedings removed from the pending cases list.

1. That there be no order as to costs.

1. Certify for Senior Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Stephensen & Stephensen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2532 of 2006

Mr Stephenson

Applicant

And

Mr Stephenson

1^st Respondent

And

Mr A Stephenson & Ms B Stephenson

2^nd Respondents

And

Mr C Stephenson

3^rd Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. It may be less than interesting for the parties to hear these fine arguments about matters of emerging legal principle and the like.  Nevertheless, I am satisfied that the Court has jurisdiction to make the orders sought. 

2. In that regard, I embrace and adopt the submissions of Mr North in regard to the meaning and effect of the judgment of Kiefel J in Spry’s case.  He has paid greater attention to the detail of the proceedings before the High Court, and I am further encouraged in the view that I take on the law on this matter by reference to the apparent observations of other Justices of the High Court in the course of argument which appear to suggest that, at face value, they do, indeed, add support for the proposition that perhaps this provision has been dormant and is about to be reinvigorated with a more liberal interpretation of its scope in this context.

3. The provisions of both s 79 and s 85A carry with them the need to consider not only whether there is jurisdiction, but whether it should be exercised in the way proposed by the parties. Section 85A, of course, makes reference to the need to consider the provisions of s 79(4).

4. In this case, there is a number of elements to the settlement which bear upon those deliberations both directly and, in the family situation, perhaps less directly.  In terms of an overall resolution of the matter, I am informed that the settlement falls within a range around 40 per cent of the total asset pool, including the G property.  In my view, that is an outcome which is entirely appropriate and it is just and equitable in the circumstances.

5. The husband’s introduction of the rural property and grazing business stands as a very significant initial contribution.  The parties thereafter applied their joint efforts to the advancement of that business and to the welfare of the family over an extended period.  They sought to secure their children’s future by participating in the trust created by the father’s mother so as to acquire a property.  The value of that property has increased substantially and, I suspect, in ways not initially to be anticipated, so that it now represents a property of very significant value.

6. Everything the parties have said in their material, supplemented in this case by the husband’s potentially very frank evidence against interest, enables the Court to be entirely comfortable that, sooner or later, these children are going to enjoy some of the benefits that might have more directly passed their way through the terms and implementation of the trust.

7. In considering whether or not I should make the orders sought, I am not only mindful of what the parties have had to say under oath, but I am, of course, greatly comforted by the knowledge that the children have an awareness of these proceedings and the negotiations between the parties.  They have not sought to be heard to oppose the orders sought by the parties to these proceedings and they have appeared and either executed, or executed through their solicitor, the orders proposed.

8. The children’s co-operation in this exercise really has enabled the family as a whole to approach this matter in a way which ensures that the wife has access to property at her choosing as a proper recognition of her very substantial contribution as a partner in the business, as a wife and as a mother.

9. It also enables the husband to retain the property that has been in his family for 100 years and is now operated jointly between the father and the eldest child of the marriage.

10. In the circumstances, I commend the parties and the adult children of the marriage for working together with the assistance of the very experienced legal teams to produce an outcome which, in my view, is just and equitable at law and entirely appropriate in a broader sense.

11. I happily make orders in terms of the draft orders signed by the husband and the wife and the three adult children of the marriage, or on their behalf.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: